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OLC Memo: Military Interrogation of Alien Unlawful Combatants Held Outside the United States

Mar. 14, 2003 | OLC | ACLU-RDI 5018

This legal memo from the Office of Legal Counsel (OLC) of the Justice Department to the Department of Defense analyzes the legal standards governing military interrogations of "alien unlawful combatans" held outside the United States.  It concludes (1) that the Fifth and Eighth Amendments do not extend to "alien enemy combatants" held abroad; (2) that federal criminal law does not apply; (3) that, even if criminal laws do apply, they would conflict with the Commander-in-Chief authority of the President; (4) that obligations imposed by the Convention Against Torture mirror those imposed by the federal torture statute; (5) that "cruel, inhuman, or degrading treatment or punishment" is coextensive with the Fifth and/or Eighth Amendments; (6) that the President is free to override any customary international law that applies; and (7) that the defenses of self-defense and necessity could provide a defense to prosecution.